In Pollock v. Bay Area Credit Service, LLC, 2009 WL 2475167 (S.D.Fla.,2009), Judge Dimitrouleas refused to apply the Rosenthal Act extraterritorially, meaning to non-California debtors against whom debt collection was performed by a California LLC. Judge Dimitrouleas explained: The Court would note that commentary on the Rosenthal Act's protection discusses it in terms of debt collection within the state:… Read More
In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA, 2009 WL 803127 (2009), the United States Supreme Court granted certiorari to address the question whether whether a debt collector's legal error qualifies for protection under the FDCPA's bona fide error defense. The question pits the 6th and 10th Circuits -- which held that the defense protects against such errors -- against… Read More
In Imperial Merchant Services v. Hunt, 2009 WL 2424543 (2009), the California Supreme Court granted a request by the United States Court of Appeals for the Ninth Circuit (Cal. Rules of Court, rule 8.548) to decide a question of California law: whether a debt collector recovering on a dishonored check may recover both a service charge under section 1719 and… Read More
In a case probably limited to its particular facts, the Court of Appeals for the Ninth Circuit applied the discovery rule to the FDCPA in Magnum v. Action Collection Services, Inc. , a copy of which can be found here. Read More
A copy of the Article can be found here. Source: Consumer Financial Services Law Report. Copyright 2009 by LRP Publications, P.O. Box 24668, West Palm Beach, FL 33416-4668. All rights reserved. For more information on this or other products published by LRP Publications, please call 1-800-341-7874 or visit their website at: www.shoplrp.com Read More
In Savage v. NIC, Inc. 2009 WL 2259726 (D.Ariz. 2009) , Judge Teilborg explained the quantum of evidence necessary for a finding of harassment, as well as whether 15 U.S.C. § 1692e(4), which prohibits a debt collector from representing or implying to a plaintiff that nonpayment will result in garnishment of wages unless such action is lawful and the debt… Read More
In Durandisse v. U.S. Auto Task Force, 2009 WL 2337133 (S.D.N.Y. 2009), Judge Chin held that the FDCPA can apply to automobile repossession companies, explaining: For most provisions of the FDCPA, repossession agencies are not considered “debt collectors.” See Jordan v. Kent Recovery Services, Inc., 731 F.Supp. 652, 656-58 (D.Del.1990). For purposes of Section 1692f(6) of the FDCPA, however,… Read More
In Gonzalez v. Kay, --- F.3d ----, 2009 WL 2357015 (5th Cir. 2009), the Court of Appeals for the Fifth Circuit attempted to justify the various decisions involving whether a collection letter on law firm letterhead requires actual attorney involvement in the collection process. The Court of Appeals explained, in part, In sum, the main difference between the cases… Read More
In Fausto v. Credigy Services Corp., 598 F.Supp.2d 1049 (N.D.Cal. 2009), Judge Ware defined the quantum of proof necessary to recover “actual damages” under the FDCPA. The FDCPA permits an award of actual damages for a defendant's violation of the statutory scheme. 15 U.S.C. § 1692k(a)(1). “Actual damages [under the FDCPA] not only include any out of pocket expenses,… Read More
In Gruen v. EdFund, 2009 WL 2136785 (N.D.Cal. 2009), Judge White elaborated on who may be subject to the FDCPA: EdFund contends that it falls within the “bona fide fiduciary obligation” exemption to the FDCPA. The FDPCA exempts from the definition of “debt collector” any person “collecting or attempting to collect any debt owed or due or asserted to be… Read More
In Marlin v. Chase Cardmember Services, Inc. 2009 WL 2043014 (E.D.Cal. 2009), Judge Ishii held that a credit card company collecting its own obligation was not subject to the FDCPA. Moreover, Judge Ishii denied leave to amend notwithstanding the Plaintiff’s suspicion that the creditor employed an outside agency to collect in its name. The Court does not believe that… Read More
In Basinger-Lopez v. Tracy Paul & Associates, 2009 WL 1948832 (N.D.Cal. 2009). Judge Armstrong refused to award emotional distress damages in an FDCPA case. Defendant failed to appear in the action, and Plaintiff sought to recover $10,000 in actual damages arising from emotional distress suffered due to the alleged collection activities of the defendant, which included threats of legal action,… Read More
In Hartung v. J.D. Byrider, Inc., 2009 WL 1876690 (E.D.Cal. 2009), Magistrate Judge Austin addressed the standard required for proof of emotional distress damages under the FDCPA, and found that a Plaintiff must meet the elements of a state court IIED claim. Judge Austin addressed the following fact pattern pursuant to Plaintiff’s effort to prove-up a default judgment. Anderson… Read More
On June 23, 2009, the FTC issued an informal staff opinion purporting to resolve a conflict between the FDCPA and the FCRA, explaining: The potential conflict arises when a consumer orders a debt collector in writing to cease communication, but at some future time submits a direct dispute about information the debt collector has provided to a CRA. The Rule… Read More
In Komarova v. National Credit Acceptance, Inc. 2009 WL 1803263 (2009), the California Court of Appeal held that the litigation privilege does not provide a defense to a Rosenthal Act claim, and applied the “continuing violation” doctrine to allow recovery for violations of the Act that occurred beyond the statute of limitations. As to the litigation privilege, the Court… Read More
In Hartman v. Great Seneca Financial Corp., -- F.3d -- 2009 WL 1852930 (6th Cir. 2009), the Court of Appeals for the Sixth Circuit refused to apply the Noerr-Pennington doctrine defense to the FDCPA, explaining: Great Seneca and Javitch argue that they are immune from suit based on statements made during judicial proceedings and that permitting such suits as brought… Read More
In Riley v. Giguiere, 2009 WL 1748721 (E.D.Cal. 2009), Judge Karlton addressed whether an attorney involved in an unlawful detainer action was a ‘debt collector’ under the FDCPA. Judge Karlton held that the attorney was ‘regularly’ engaged in debt collection, explaining: Briefly, a debt collector includes anyone who “regularly collects or attempts to collect, directly or indirectly, debts owed… Read More
In Smith v. NCO Financial Systems, Inc. 2009 WL 1675078 (E.D.Pa. 2009), Judge Rufe addressed whether a debtor stated claim under the FDCPA arising out of a debt collector’s use of a “Privacy Notice”, which stated: Information We Collect: We collect non-public personal information about you from the following sources: From you on applications or other forms, over the… Read More
Not all Plaintiffs are created equal under the FDCPA. In Bank v. Pentagroup Financial, LLC, 2009 WL 1606420 (E.D.N.Y. 2009), Judge Gleeson held that a non-debtor has no standing to pursue a claim under 15 USC 1692c (debt collector can only communicate with the debtor, his attorney, or designated representative about the debt), but did have standing to pursue a harasment claim under… Read More
In Puttner v. Debt Consultants of America, 2009 WL 1604570 (S.D.Cal. 2009), Judge Hayes applied a liberal pleading standing to the FDCPA under FRCP 8. The Plaintiff argued that “foundational facts need not be pled with particularity in order to state a claim under the FDCPA or the RFDCPA” and that “the Complaint alleges sufficient facts to support claims for… Read More
